IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-106
[2021] NZHC 290
UNDER the Companies Act 1993 BETWEEN
WATTS & HUGHES CONSTRUCTION LIMITED
Plaintiff
AND
VIJAY BIALA
Defendant
On the papers Counsel:
D J Jackson for the Plaintiff S Cottrell for the Defendant
Judgment:
26 February 2021
JUDGMENT OF CULL J
[1] The plaintiff’s reckless trading claim against the defendant was dismissed in my judgment dated 17 November 2020. Mr Biala has filed a memorandum seeking costs of $60,419.00 on a 2B basis with a 50 per cent increase to recognise the Calderbank offers made by him, and $18,828.55 in disbursements.
[2] The plaintiff agrees that 2B scale costs are applicable, but challenges the defendants total time allocation, the increased costs application and whether the defendant’s claimed disbursement fees are reasonable or can be said to have been incurred by the defendant.
WATTS & HUGHES CONSTRUCTION LIMITED v BIALA [2021] NZHC 290 [26 February 2021]
Appropriate Time Allocations
[3] Counsel disagree as to the appropriate allocations for various memoranda filed throughout the proceedings, preparation and attendance of the judicial settlement conference and the length of hearing.
Disputed memoranda
[4] The parties dispute the time allocations for six of the memoranda filed. These memoranda largely deal with case management and timetabling issues. The defendant seeks an allowance of 0.4 for five of the contested memoranda. In relation to the memorandum dated 1 July 2019, the defendant seeks an allowance of 0.2 days. Mr Cottrell submits that despite being a revised version of an earlier memorandum, which Counsel have agreed should receive an allocation of 0.4 days, this was a filed memorandum and thus can be properly claimed as a legitimate step in the proceedings. The plaintiff contends that a 0.2 allowance for the first five memoranda and no allocation at all for the memorandum dated 1 July 2019 is appropriate.
[5] I accept the plaintiff’s submission that an allowance of 0.4 is too high. These memoranda involved simple timetabling issues and the provision of a witness list. They are not analogous to the comprehensive memoranda filed for case management conferences that may receive an allocation of 0.4 for 2B costs under sch 3 of the High Court Rules. Such a high allowance for these memoranda may very well amount to an award of costs that were not in fact incurred.
[6] However, I accept that the defendant should receive an allowance for the revised memorandum dated 1 July 2019. The filing of the memorandum was a step in the proceedings. Some allowance is properly required to recognise this.
[7] Accordingly, I award the defendant an allocation of 0.2 for each contested memorandum.
Judicial Settlement Conference
[8] Counsel for the defendant seeks costs for preparation and appearance at the judicial settlement conference on 3 September 2019. This is not a practice under the
High Court Rules. Mr Cottrell argues that, as costs for judicial settlement conferences are provided for under the District Court…
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- Case
- [2021] NZHC 290
- Decision Date
CaseChat Overview and Summary
The court then considered the increased costs application. It found that the defendant was not entitled to a 50 per cent uplift for the Calderbank offers, as the plaintiff was not unreasonable in rejecting the offers. However, it found that a 25 per cent uplift was appropriate to recognise the defendant's efforts to settle the litigation prior to the hearing. Finally, the court considered the disbursements. It found that the disbursements had been incurred by the defendant and were reasonable in amount. The defendant's expert witness was necessary and helpful, and his charge out rate was not unreasonable. The court ordered the plaintiff to pay the defendant increased 2B costs in the amount of $44,889.63, plus disbursements in the amount of $18,828.55.
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Decision
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Ratio Decidendi
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